DPP v Clarke - [2005] VSCA 2

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 208 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
MATTHEW THOMAS CLARKE

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2005
DATE OF JUDGMENT:	2 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 2

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Criminal law – Sentencing – Culpable driving – Appeal by Crown against sentence – Gravity of offences – Degree of cumulation – Whether sentence manifestly inadequate – Crimes Act 1958 s.567A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr. P.F. Tehan Q.C. with Mr. M.J. Croucher	Balot Reilly & Associates

VINCENT, J.A.:

I will invite Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

Appeal by the Director of Public Prosecutions appeals, pursuant to s. 567A of the Crimes Act 1958, against the sentence imposed by a judge of the County Court on 21 July 2004 in respect of one count of culpable driving and two counts of negligently causing serious injury, to which the respondent pleaded guilty.

The facts

At the time of the offences the respondent was 22 years of age and had been licensed to drive and driving since turning 18 years of age. For the last 10 months he had also been keeping company with the deceased, Amanda Avery, who was a young woman of 16 years of age living with her father and stepmother.

On Good Friday 18 April 2003 the respondent spent time assisting the deceased at a working bee at the deceased’s father’s and step mother’s home and at the end of the day he stayed on for a barbeque which was put on by the deceased’s father. In the course of the barbeque he drank a number of scotch and cokes provided by the deceased’s father and after the barbeque concluded he drove the deceased to the home of another young woman, Thalia Glennister, with whom was staying the deceased’s young cousin, Laura Charles. While at Ms Glennister’s home the respondent shared a bottle of white wine with the deceased and then at 10.20 p.m. he drove the three young women out to buy something to eat.

By that stage the respondent had a blood alcohol concentration of at least 0.150 (which is to say three times the legal limit for driving) and his driving was erratic. He misjudged the intersection of Wetherby Street and Walker Road and went sideways across it before continuing on to his house in Station Street, Carrum. He stopped there for a short while, apparently to collect something that he wanted, and then continued on towards the Seaford Station, still driving erratically but now at very high speed down Railway Parade, Seaford. He decelerated a little as the car approached the Seaford Station, but as the traffic lights ahead turned from red to green he accelerated hard again, this time to a speed of 158 kph (in a 60 kph zone), and then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Clarke

Details

AGLC: Director of Public Prosecutions v Clarke [2005] VSCA 2
Case: [2005] VSCA 2
Decision Date: 2 February 2005

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions, appealing against the sentence given to a defendant, Clarke, for culpable driving resulting in death. The appeal was heard in the Supreme Court of Victoria. The Crown sought to argue that the sentence imposed was manifestly inadequate, given the gravity of the offence and the degree to which the sentences cumulated.

The court had to determine whether the sentence was manifestly inadequate under section 567A of the Crimes Act 1958. This required the court to consider the severity of the offence, the defendant's culpability, and the impact of the crime on the victim's family. The Crown argued that the sentence did not reflect the gravity of the offence and failed to adequately deter the defendant and others from engaging in similar conduct.

The court examined the circumstances of the offence and the defendant's history, ultimately determining that the original sentence did indeed fail to adequately reflect the seriousness of the crime. The court considered the cumulative effect of the sentences and found them insufficient to address the gravity of the offences. As a result, the court allowed the Crown's appeal and ordered a new sentencing hearing to ensure that the sentence appropriately reflected the seriousness of the culpable driving offence.

Orders